Outten v. National R.R. Passenger Corp.

• Decision Date: 13 March 1991
• Docket Number: No. 90-1520,90-1520
• Citation: 928 F.2d 74
• Parties: Nelson E. OUTTEN, Jr., Appellant, v. NATIONAL RAILROAD PASSENGER CORPORATION a/k/a Amtrak.
• Court: U.S. Court of Appeals — Third Circuit

Page 74

928 F.2d 74

59 USLW 2582

Nelson E. OUTTEN, Jr., Appellant, v. NATIONAL RAILROAD PASSENGER CORPORATION a/k/a Amtrak.

No. 90-1520.

United States Court of Appeals Third Circuit.

Argued Dec. 13, 1990.

Decided March 13, 1991.

Joseph Smukler (Argued), Meyer, Lasch, Hankin & Poul, Philadelphia, Pa., for appellant.

Richard L. Goerwitz, Jr. (Argued), Francis X. Brennan, Swartz, Campbell & Detweiler, Philadelphia, Pa., for appellee.

Before SLOVITER, Chief Judge, ^* MANSMANN, Circuit Judge, and SAROKIN, District Judge. ^**

OPINION OF THE COURT

SLOVITER, Circuit Judge.

This appeal requires us to revisit the issue of the permissible scope of a claim by a railroad employee against his employer alleging damages for injuries of an emotional nature only. Nelson E. Outten, Jr. appeals from the district court's order granting summary judgment in favor of National Railroad Passenger Corporation ("Amtrak") in Outten's negligence action brought pursuant to the Federal Employers' Liability Act, 45 U.S.C. Sec. 51 et seq. (1988) ("FELA"). Outten contends that the district court erred as a matter of law in holding that Outten was precluded from recovering for his wholly emotional injuries because he was not in the zone of danger of a train collision that occurred a mile away from where he was located. The relevant facts are undisputed; the appeal raises only an issue of law.

I. Factual Background and Procedural History

Outten was working for Amtrak as an on-track tamper operator near Hook Tower, Pennsylvania, late one night in January 1988. In this location, there are six parallel tracks running north and south between Philadelphia, Pennsylvania, and Wilmington, Delaware, numbered 0 to 5. Outten had been assigned to work on track 2, but instead was on track 0, 38 feet east of track 2, attempting to repair the frozen travel valve on his tamper. Two of Outten's co-workers were operating a ballast regulator on track 2 and were proceeding southward down the track toward Outten's position. Outten saw the lights of the regulator when it was about a mile and a half away.

Approximately 20 minutes later, Outten noticed that an Amtrak passenger train travelling northbound from Washington, D.C. on track 2 failed to cross over from track 2 to track 1 at the Hook Tower switch. We assume for purposes of summary judgment that the Hook Tower operator negligently failed to turn the switch. As a result, Outten knew that the train and the ballast regulator would collide. Because Outten had his back turned to the ballast regulator, he did not know its precise position on track 2. He thought that the ballast regulator had travelled much farther south along track 2 than it actually had and believed, albeit incorrectly, that the impact might be close to him.

When the passenger train had travelled northward to a position parallel to Outten's, he panicked, jumped off his tamper, and ran in the same direction that the passenger train was travelling. Outten feared for his life because he thought that the collision was imminent and that the flying debris would kill him. He had seen a dead body that had been hit by a train in 1986, and feared that the same would happen to him.

The passenger train eventually did collide with the regulator, but the point of impact was at least a full mile north of the point to which Outten had run. Outten did not witness the impact, but he did see sparks from an engine explosion and some of the train cars derailing. No one was killed in the accident, although a few people sustained minor injuries. It is conceded for purposes of summary judgment that Outten suffered psychological injuries, including uneasiness and fear which rendered him unable to work for approximately four weeks.

Outten filed an action in the Eastern District of Pennsylvania under the FELA, alleging that Amtrak had negligently inflicted emotional distress upon him. Amtrak's motion for summary judgment contended that Outten's injuries are not cognizable under the FELA because Outten was not in the zone of physical danger and suffered no physical impact or physical consequences as a result of the collision.

The district court granted Amtrak's motion. It recognized that FELA actions are governed by federal common law, but applied the common law of Pennsylvania "in the absence of Third Circuit authority in this area." App. at 13. The court correctly construed Pennsylvania law as holding that a plaintiff claiming negligent infliction of emotional distress who suffered no physical impact from the force and is not related to any persons involved in the accident must show not only " 'that the negligent force was aimed at him and put him in personal danger of physical impact' " but also " 'that he actually did fear the force.' " App. at 14 (quoting Niederman v. Brodsky, 436 Pa. 401, 413, 261 A.2d 84, 90 (1970)). Using this test, the district court held that Outten was unable to prevail as a matter of law.

The district court had jurisdiction pursuant to 45 U.S.C. Sec. 56. This court has jurisdiction pursuant to 28 U.S.C. Sec. 1291. Our review of the district court's grant of summary judgment is plenary. Erie Telecommunications, Inc. v. Erie, 853 F.2d 1084, 1093 (3d Cir.1988).

II. Negligent Infliction of Emotional Distress Under FELA

Section 51 of the FELA provides compensation for railroad employees who suffer injuries as a result of employer negligence. ¹ The Supreme Court has recognized that the FELA is a broad remedial statute, and it has adopted a standard of liberal construction in order to accomplish the congressional objectives. See Atchison, Topeka & Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 562, 107 S.Ct. 1410, 1413, 94 L.Ed.2d 563 (1987). Thus, the Court has stated that an employee can recover under the FELA so long as the employer's negligence "played any part, even the slightest, in producing the injury or death for which damages are sought." Rogers v. Missouri Pac. R.R. Co., 352 U.S. 500, 506, 77 S.Ct. 443, 448, 1 L.Ed.2d 493 (1957); Pehowic v. Erie Lackawanna R.R. Co., 430 F.2d 697, 699 (3d Cir.1970).

On the other hand, in dealing with the issue of the types of injuries which are cognizable under the FELA, the Court reiterated its earlier statement that FELA jurisprudence "gleans guidance from common-law developments." Buell, 480 U.S. at 568, 107 S.Ct. at 1417 (citing Urie v. Thompson, 337 U.S. 163, 174, 69 S.Ct. 1018, 1026, 93 L.Ed. 1282 (1949)). Significantly, in Buell the Court declined the invitation to make a bright line legal ruling that purely emotional injuries are recoverable under the FELA. Id. at 567, 107 S.Ct. at 1416. Instead, the Court noted that "whether one can recover for emotional injury might rest on a variety of subtle and intricate distinctions related to the nature of the injury and the character of the tortious activity." Id. at 568, 107 S.Ct. at 1417. Although the Court remarked that most states now recognize a tort of intentional infliction of emotional distress and many have recognized a tort of negligent infliction of emotional distress, it stated that with respect to the latter the states "vary in the degree of objective symptomatology the victim must demonstrate." Id. at 569-70, 107 S.Ct. at 1418. Thus, the Court concluded that "broad pronouncements in this area might have to bow to the precise application of developing legal principles to the particular facts at hand." Id. at 570, 107 S.Ct. at 1418.

It follows that in seeking guiding principles to govern application of the FELA to purely emotional injuries, the district courts are not limited to the law of the forum state. Instead, they must gauge the development of common law from a broader base, which may be, but is not necessarily, reflected in the law of the particular state in which the court sits. Until the parameters of a FELA claim for negligent infliction of emotional distress are more clearly delineated, the cases must be analyzed on an ad hoc basis.

In Holliday v. Consolidated Rail Corp., 914 F.2d 421 (3d Cir.1990), this court had occasion recently to consider the viability of a FELA claim for negligent infliction of emotional distress. A railroad worker, who was assigned the duties of a conductor but was not assigned a pilot to assist him even though he considered himself unqualified to perform his duties single-handedly, frequently threw the wrong switches and was almost crushed once during a switching operation. He experienced job-related stress as a result, which manifested itself in the form of heart palpitations, sleep disorders, spastic colon, tenesmus, involuntary rectal discharge, anxiety and depression. We concluded that Holliday's mere job-related stress was not cognizable under the FELA, emphasizing that no accident ever occurred, there was no physical impact, and there was no injury to anyone other than Holliday. Id. at 425-26. In so holding, the majority necessarily rejected the position of the dissenting judge who would have found "as a matter of law that the FELA permits a recovery for emotional distress." Id. at 427 (Mansmann, J., dissenting). We are bound to follow the majority's view.

Although we emphasized that our holding was limited to the specific facts before us, id. at 426-27, our opinion made clear the policy reasons for applying a cautious approach before enlarging recovery under the FELA to encompass damages for stress-related illnesses arising out of stressful positions. We referred to the need to prevent (1) fraudulent claims; (2) incalculable and potentially unlimited damages; and (3) a flood of litigation brought by disenchanted workers. Id. at 424 (quoting Kraus v. Consolidated Rail Corp., 723 F.Supp. 1073, 1090 (E.D.Pa.1989), appeal dismissed, 899 F.2d 1360 (3d Cir.1990)).

Similar reasons are also given in the Restatement (Second) of Torts Sec. 436A, comment b (1965) for declining to impose liability for emotional disturbance which is unaccompanied by bodily harm or other compensable damage. The...